Briceno v. Scribner

WARDLAW, Circuit Judge, concurring in part and dissenting in part:

I concur in the opinion, except as to Part 111 of the analysis. As to Part III, I must respectfully dissent, principally due to the standards we must apply on habeas review.

In the words of the California Court of Appeal, Alberto Briceno and Evaristo Lan-din “launched a grinchly crime wave on Christmas Day 2000,” and were ultimately convicted of four armed robberies, each committed within a three-hour time span that day. Although there was evidence at trial that the crimes were committed for personal gain (stealing money to buy Christmas gifts), the jury found that a sentencing enhancement was warranted based on the gang-related nature of the crimes. Briceno’s sentence was enhanced under California’s gang enhancement statute, which provides an enhancement for “any person who is convicted of a felony committed [ (1) ] for the benefit of, at the direction of, or in association with any criminal street gang, [ (2) ] with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Cal.Penal Code § 186.22(b)(1) (emphasis added). The two prongs are considered separately. See, e.g., People v. Morales, 112 Cal.App.4th 1176, 5 Cal.Rptr.3d 615, 632 (2003); see also Maj. Op. at 1078.1 The majority holds that “there was not sufficient evidence to sustain the conclu*1084sion that the robberies were committed with the specific intent to benefit a criminal street gang.” Maj. Op. at 1078.2 I disagree that the state court unreasonably interpreted its own law in finding that the gang enhancement was supported by sufficient evidence, and would affirm the district court.

Our task is to decide whether the state court’s adjudication entailed an unreasonable application of Jackson v. Virginia, which permits reversal only when “upon the record evidence adduced at the trial[,] no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see 28 U.S.C. § 2254(d)(1); Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.2005). In determining whether sufficient evidence supports the state law statutory enhancement, we are bound by “a state court’s interpretation of state law.” Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005). If, as here, there is no controlling “pronouncement by the highest court of a state, the federal courts must follow the decision of the intermediate appellate courts of the state[,] unless there is convincing evidence that the highest court of the state would decide differently.” Owen ex rel. Owen v. United States, 713 F.2d 1461, 1464 (9th Cir.1983) (internal quotation marks omitted).

The three directly relevant decisions by the California Court of Appeal hold that to prove “specific intent to ... assist in any criminal conduct by gang members,” it is sufficient to demonstrate that the “defendant intended to commit [the crimes], that he intended to commit them in association with [his accomplices], and that he knew that[his accomplices] were members of his gang.” Morales, 5 Cal.Rptr.3d at 632; see also People v. Villalobos, 145 Cal.App.4th 310, 51 Cal.Rptr.3d 678, 687 (2007) (“Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime.”); People v. Romero, 140 Cal.App.4th 15, 43 Cal.Rptr.3d 862, 866 (2006) (“There was ample evidence that appellant intended to commit a crime, that he intended to help[his accomplice] commit a crime, and that he knew[his accomplice] was a member of his gang.”);3 cf. People v. Hill, 142 Cal.*1085App.4th 770, 47 Cal.Rptr.3d 875, 877 (2006) (finding specific intent to enable gang-related activity when one gang member commits a crime).4 Under this unequivocal state law, it follows that a rational jury could conclude beyond a reasonable doubt that Briceno had the specific intent to assist in criminal conduct by gang members because he intended to commit the four robberies in the short time span using the same modus operandi, intended to commit them in association with Landin, and knew that Landin was also an active member of the Hard Times criminal street gang. In other words, under the reasoning in Morales, Villalobos, and Romero, Landin’s crimes qualify as “any criminal conduct by gang members,” and Briceno’s purposeful assistance to Landin in this criminal conduct qualifies as “specific intent to ... assist” that criminal conduct. Briceno does not dispute that he intended to commit at least three of the crimes, that he intended to commit the crimes in association with Landin, and that he knew Landin was a gang member. Although the Court of Appeal also relied upon Peter Vi’s expert testimony to conclude that there was sufficient evidence to support the gang enhancement, that reliance was unnecessary to its decision.5

The reasoning in Morales, Villalobos, and Romero controls our decision because there is no “convincing evidence that the highest court of the state would decide differently.” Owen, 713 F.2d at 1464 (internal quotation marks omitted). The majority, however, declines to follow these decisions. Relying on an erroneous interpretation of People v. Gardeley, 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713 (1997), the one California Supreme Court pronouncement on gang enhancements, the majority concludes that the California Supreme Court would decide the specific intent question differently from the Court of Appeal. In Gardeley, the Supreme Court found sufficient evidence to support the sentencing enhancement when multiple gang members acting together violently assaulted an intruder on their turf in order “to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold.” Id. at 722. In the expert’s opinion, *1086this was a “ ‘classic’ example of gang-related activity.” Id. The majority points out that Gardeley holds that the statute enhances the sentence only when the defendant commits “a felony to aid or abet criminal conduct of a group that has as a primary function the commission of specified criminal acts and whose members have actually committed specified crimes, and who acted with the specific intent to do so.” Id. at 725 n. 10. The majority’s point is correct but inapposite. Gardeley stands for the proposition that the statute “does not criminalize mere gang membership.” Id. at 725. It does not support the contention that the majority purports to make — that the Supreme Court would hold that the commission of a crime with another gang member is insufficient to establish specific intent to “assist in any criminal conduct by gang members.”

Further, though intimidation of intruders to maintain turf dominance may be a “classic” example of gang-related activity, there is no indication that gang-related activities occurring outside the turf cannot serve as a basis for enhancement. “Classic” gang-related activity is not “necessary to sustain gang enhancements,” contrary to the majority’s contention. See Maj. Op. at 1080-81. Thus, Gardeley does not present “convincing evidence” that would allow us to reject the reasoning of the California appellate courts. Owen, 713 F.2d at 1464.

In concluding that “on the facts of this case, the California Supreme Court would not hold that there was sufficient evidence to establish a ‘specific intent to promote, further, or assist in any criminal conduct by gang members,’ ” Maj. Op. at 1081, the majority ignores that the California Supreme Court has already considered and implicitly rejected Briceno’s argument regarding insufficiency of the evidence to support the gang enhancement. After the Court of Appeal found that the record evidence was sufficient to support the gang enhancement, Briceno, 2003 WL 1710927, at *3, Briceno petitioned for review of that decision to the California Supreme Court, Defendant’s Petition for Review, Briceno, 5 Cal.Rptr.3d 32, 77 P.3d 3 (No. S117641), 2003 WL 23015605, at *2. The Supreme Court rejected Briceno’s petition, but granted the State’s cross-petition on a separate and unrelated issue. State’s Petition for Review, Briceno, 5 Cal.Rptr.3d 32, 77 P.3d 3 (No. S117641), 2003 WL 23015606. It reversed the Court of Appeal only with respect to its finding that Briceno did not “suffer[] a prior conviction for a serious felony.” People v. Briceno, 34 Cal.4th 451, 20 Cal.Rptr.3d 418, 99 P.3d 1007, 1008 (2004). “In all other respects, [the Supreme Court] affirm[ed] the judgment.” Id. at 1009.

The Supreme Court’s summary affir-mance has limited, but — for the purposes of this analysis — sufficient, precedential value. The summary affirmance of the judgment indicates, at most, agreement with the “precise issues framed and necessarily decided in the case below.” Hoffman v. State Bar of Cal., 113 Cal.App.4th 630, 6 Cal.Rptr.3d 592, 604 n. 10 (2003); see also Anderson v. Celebrezze, 460 U.S. 780, 784 n. 5, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (“We have often recognized that the precedential effect of a summary affir-mance extends no further than the precise issues presented and necessarily decided by those actions. A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.” (internal quotation marks omitted)). Thus, though “summary affir-mances” are “a rather slender reed on which to rest [a] decision,” Anderson, 460 U.S. at 784 n. 5, 103 S.Ct. 1564 (internal quotation marks omitted), even this limited extent of agreement demonstrates that the Supreme Court would find that the ele*1087ments of section 186.22(b) were met in Briceno’s case.

Further, the denial of Briceno’s petition by the Supreme Court itself suggests that the Supreme Court would not disagree with the Court of Appeal’s conclusion. An “order [denying review of a] decision of the District Court of Appeal may be taken as an approval of the conclusion there reached, but not necessarily of all of the reasoning contained in that opinion.” Di Genova v. State Bd. of Ed., 57 Cal.2d 167, 18 Cal.Rptr. 369, 367 P.2d 865, 871 (1962) (emphasis added) (internal quotation marks omitted). Again, this limited approval is sufficient for our purposes — establishing that the Supreme Court would agree with the Court of Appeal’s decision that record evidence in Briceno’s case sufficiently supports the two elements required for the enhancement.

The majority correctly points out that the Supreme Court’s “refusal to grant a hearing in a particular ease is to be given no weight insofar as it might be deemed that [it has] acquiesced in the law as enunciated in a published opinion of a Court of Appeal when such opinion is in conflict with the law as stated by [the Supreme C]ourt.” Trope v. Katz, 11 Cal.4th 274, 45 Cal.Rptr.2d 241, 902 P.2d 259, 268 n. 1 (1995) (emphasis and internal quotation marks omitted). I agree. No party should attempt to rely on the Court of Appeal’s interpretation of the law in its unpublished opinion to the extent it is contradicted by a published holding of the Supreme Court. The Supreme Court does not have to agree with the Court of Appeal’s interpretation of the statute, however. All we must determine — and the denial of review establishes this and no more— is that the Supreme Court agreed with the Court of Appeal’s conclusion that sufficient record evidence supports the enhancement as to Briceno.6 The Supreme Court’s agreement with the Court of Appeal in this case, therefore, presents “convincing evidence” that it would not disagree with the decisions of the California appellate courts.

The majority also purports to follow a Ninth Circuit decision that finds insufficient evidence for a gang enhancement when “there was no testimony or other evidence to support a rational inference that the robbery ... was committed with the intent to further other criminal activity” of the gang. Garcia v. Carey, 395 F.3d 1099, 1104 (9th Cir.2005). This reliance is unjustified for three reasons.

First, in the habeas context, it is inappropriate to hold, as the majority does, that “the California Court of Appeal’s analysis runs afoul of this court’s decision in Garcia v. Carey.” Maj. Op. at 1079. The California state court was not bound by Garcia in its interpretation of section 186.22(b); nor may we analyze the state court’s opinion for compliance therewith. We review the state court’s decision only to determine whether it reasonably applied “clearly established Federal law,” defined as “the governing legal principle or principles set forth by the Supreme Court at the *1088time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Clearly, Garcia does not fit this definition. “While circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court’s holdings are binding on the state courts and only those holdings need be reasonably applied.” Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003) (citation and internal quotation marks omitted). The applicable federal law is the Jackson standard, and there is no indication that the state court unreasonably held that a rational trier of fact could have found the gang enhancement true beyond a reasonable doubt. Our reasoning in Garcia, then, is only persuasive authority that should be rejected when, as here, it is contrary to the state’s own interpretation of its statute. See Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986).

Second, we could follow Garcia only if faced with “convincing evidence” that allows us to set aside the contrary appellate court decisions. Owen, 713 F.2d at 1464. As explained above, we are not. In Owen, we were presented with a previous Ninth Circuit decision, Commercial Union Insurance Co. v. Ford Motor Co., 640 F.2d 210 (9th Cir.1981), which interpreted California Civil Procedure Code section 877. Subsequent California Court of Appeal’s decisions articulated a different interpretation. We stated that “[o]ur interpretation in Commercial Union was only binding in the absence of any subsequent indication from the California courts that our interpretation was incorrect.” Owen, 713 F.2d at 1464. Here, California courts could not have indicated more clearly that our interpretation of section 186.22(b) was incorrect. Garcia has been explicitly disapproved in two subsequent California Court of Appeal decisions. See Romero, 43 Cal. Rptr.3d at 865 (declining to follow Garcia because “[b]y its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct”); Hill, 47 Cal.Rptr.3d at 877 (same). As explained above, there is no “convincing evidence” that might lead us to disregard these pronouncements; therefore, we cannot deem Garcia controlling.

Third, Garcia is not directly applicable because Garcia did not address the situation here: two gang members committing a crime together. In Garcia, the defendant committed a liquor store robbery with accomplices; it is unclear whether the accomplices were fellow gang members. The State’s theory of specific intent in that case was the fairly vague “facilitation of] other gang-related criminal operations within El Monte,” Garcia, 395 F.3d at 1103, a theory that could rest only on the statutory prohibition of “promoting] and furthering] ... any criminal conduct by gang members,” Cal.Penal Code § 186.22(b). Here, by contrast, the State’s theory of specific intent is predicated upon two gang members committing a crime together — a theory that rests on the statutory prohibition against “assisting] in any criminal conduct by gang members,” id., and a theory that Garcia did not directly address. Therefore, there is no basis for holding, as the majority does, that Garcia “expressly rejected the same interpretation of § 186.22(b) advanced by the State in this case.” Maj. Op. at 1080.

The majority disregards the clear holding of the California appellate courts that a criminal act intentionally committed with another known gang member demonstrates specific intent to assist in criminal conduct by gang members — a holding that sustains the state court’s finding of sufficient evidence to support the gang en*1089hancement in Briceno’s case. The majority’s disregard of the Court of Appeal’s decisions is unwarranted because there is no convincing evidence suggesting that the Supreme Court would decide the question differently, and because the California Supreme Court has already placed its stamp of approval on the Court of Appeal’s conclusion in this case that, no matter the interpretation of the statute, Briceno’s crimes warrant the sentencing enhancement. Because the Court of Appeal was not unreasonable in finding that a rational trier of fact applying state law could find the sentencing enhancement was proven beyond a reasonable doubt, I must dissent.

. I agree with the majority that we need not decide whether Peter Vi’s expert testimony was sufficient evidence from which a rational trier of fact could find that the first element of the statute was proven beyond a reasonable doubt. See Maj. Op. at 1079 (''[Vi's] testimony might have helped to establish the first element of the gang enhancement, i.e., that the crime ultimately benefitted the gang in *1084some way.”). Thus, the focus of our disagreement is whether sufficient evidence supports the second, specific intent, element of the statute.

. The majority opinion intermittently conflates the analysis of the two prongs, as does the Court of Appeal's decision. The second prong requires proof not that defendant had specific intent to “benefit” the gang, but that he had specific intent to "promote, further, or assist in any criminal conduct by gang members.” Compare Cal.Penal Code § 186.22(b)(1), with Maj. Op. at 1078, 1081, and People v. Briceno, Nos. G029525, G029607, 2003 WL 1710927, at *3, 2003 WL 1710927 (Cal.Ct.App. Mar.28, 2003).

. The majority attempts to assign significance to the factual circumstances of Villalobos and Romero, suggesting that to support a finding of specific intent, it is necessary to find that the “defendant intended to protect gang turf or facilitate gang operations.” See Maj. Op. at 1081 & n. 5 (citing Villalobos, 51 Cal.Rptr.3d at 681 (crime committed on gang turf); Romero, 43 Cal.Rptr.3d at 864-65 (retaliatory shooting on a rival gang’s turf)). The presence of gang-related indicia may be relevant to the determination of whether the crime was committed "for the benefit of, at the direction of, or in association with” the gang. There is absolutely no indication in either opinion, however, that the Court of Appeal relied on the geographic location of the crime or the presence of gang-related indicia to support its finding of specific intent. See Villalobos, 51 Cal.Rptr.3d at 686-87; Romero, 43 Cal.Rptr.3d at 865-66. Here, only the specific intent element of the statute is at issue. Therefore, the lack of gang-related indicia is not dispositive. Further, the majority concedes that Morales “did not in*1085volve a specific indicia of gang-related criminal conduct,” but argues that Briceno’s case falls into the “frolic and detour” exception. See Maj. Op. at 1081 n. 4 (citing Morales, 5 Cal.Rptr.3d at 632 (“[I]t is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang.”)). This exception, however, also applies only to the first prong of the statute. Morales suggested only that it is possible that two gang members committing a crime together are not necessarily acting “in association” with a gang. The "frolic and detour” exception, as articulated in Morales, cannot underlie a finding that a defendant lacked specific intent to "assist in any criminal conduct by gang members.” Cal.Penal Code § 186.22(b).

. The Court of Appeal in Hill found that specific intent was established because the "defendant's own criminal threat qualified as the gang-related criminal activity”; therefore, by committing the crime, the defendant acted with specific intent to further that activity. 47 Cal.Rptr.3d at 877. Because Hill concerns the commission of a crime by one gang member acting alone, it is least relevant here, where two gang members acted in concert. Therefore, we do not need to decide whether the Supreme Court would agree that the commission of a crime by one gang member acting alone, with the attendant mention of the gang association to the victim, is sufficient to warrant application of the gang enhancement statute.

. The majority correctly points out that Vi did not, and could not, provide an opinion regarding Briceno's specific intent. Therefore, In re Frank S., 141 Cal.App.4th 1192, 46 Cal.Rptr.3d 839, 842-44 (2006), and People v. Killebrew, 103 Cal.App.4th 644, 126 Cal.Rptr.2d 876, 886 (2002), are inapposite because those cases address the impropriety of expert testimony to establish specific intent.

. While the majority purports to strictly follow some Ninth Circuit precedent, like Garcia, it completely ignores other precedent, like Roman v. Estelle, in which we held that “when the California Supreme Court denies a petition for hearing without citation or comment, it will be assumed that the state supreme court has been given a fair opportunity to review the merits of the petitioner’s claim.” 917 F.2d 1505, 1506 (9th Cir.1990) (internal quotation marks omitted). There is no doubt that in Briceno's petition for review, the California Supreme Court was presented with the exact question we are answering today and, thus, had the opportunity to review the claim on the merits. See Defendant’s Petition for Review, Briceno, 5 Cal.Rptr.3d 32, 77 P.3d 3 (No. S117641), 2003 WL 23015605, at *2 ("Is the commission of a crime with a fellow gang member, without more, sufficient to prove the crimes were gang related ... ?”).